Citation NR: 9731915
Decision Date: 09/18/97 Archive Date: 09/23/97
DOCKET NO. 96-44 590 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a heart condition
due to exposure to ionizing radiation.
2. Entitlement to service connection for internal bleeding
due to exposure to ionizing radiation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel G. Krasnegor, Associate Counsel
INTRODUCTION
The veteran retired in July 1960 with more than 22 years of
active duty service.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a June 1996 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO).
In his October 1996 substantive appeal, the veteran raised
claims for entitlement to service connection for diabetes,
and hypertension. These issues have been neither prepared
nor certified for appellate review and are referred to the RO
for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that he currently suffers from a heart
disorder and internal bleeding, due to exposure to ionizing
radiation, thereby warranting a grant of service connection
for those disorders.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claims for service
connection for a heart disorder and internal bleeding, due to
exposure to ionizing radiation, are not well grounded.
FINDING OF FACT
The claims for service connection for a heart disorder and
internal bleeding, due to exposure to ionizing radiation are
not supported by cognizable evidence showing that the claims
are plausible or capable of substantiation.
CONCLUSION OF LAW
The claims for service connection for a heart disorder and
internal bleeding, due to exposure to ionizing radiation are
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 and Supp.
1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service medical records reflect no treatment for or diagnosis
of heart problems or internal bleeding. The records do show
that the veteran was exposed to ionizing radiation on a
number of occasions in 1956 and 1958.
VA out-patient treatment records, dating from 1994 and 1995
reflect that the veteran had a history of coronary artery
bypass grafting two times in the past.
In a December 1995 statement, the veteran recalled that he
had undergone heart surgery in June 1981 and September 1993.
He also reported having been exposed to over 30 multi-megaton
nuclear tests as close as 2,000 yards.
In an August 1996 notice of disagreement, the veteran
restated that he had undergone open heart surgery twice
before, and that he had participated in Operation REDWING,
WIGWAM, and HARDTACK.
In October 1996, VA out-patient treatment records were
received covering the period from 1989 to 1996. The records
evidenced treatment for gastrointestinal bleeding, and
coronary artery disease.
Analysis
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible. See Grivois v. Brown, 6 Vet.App. 136,
139 (1994); see Grottveit v. Brown , 5 Vet.App. 91, 92
(1993). Because the veteran has failed to meet this burden,
the Board finds that his claims for service connection for a
heart disorder and internal bleeding, due to exposure to
ionizing radiation are not well grounded and should be
denied.
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
The claimant does not meet this burden by merely presenting
his lay opinion because he is not a medical health
professional and does not constitute competent medical
authority. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Consequently, his lay assertions cannot constitute cognizable
evidence, and as cognizable evidence is necessary for a well
grounded claim, see Tirpak v. Derwinski, 2 Vet.App. 609, 611
(1992), the absence of cognizable evidence renders a
veteran's claim not well grounded.
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis), of incurrance or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence.) Caluza v. Brown, 7 Vet.App.
498, 506 (1995).
The Board notes initially that under 38 C.F.R. § 3.309(d)
(1996) service connection may be granted on a presumptive
basis for certain diseases if it is shown that a veteran had
radiation exposure. Under 38 C.F.R. § 3.311 (1996), certain
development is undertaken to determine the relationship
between radiation exposure and the development of a disease,
so long as the veteran is shown to be diagnosed with a listed
disease. Neither heart disorders nor internal bleeding are
on the lists of diseases provided for under §§ 3.309 and
3.311. As such, those regulations are not for application in
this case.
Although the veteran may not take advantage of the preceding
regulations, he may still be entitled to service connection
for the claimed disorders if the evidence of record shows
that a heart condition and internal bleeding are present and
are related to service, including possible exposure to
radiation, Combee v. Brown 34 F.3d 1039 (Fed. Cir. 1994),
reversing in part Combee v. Principi, 4 Vet.App. 78 (1993).
The veteran's service medical records show that he was
exposed to ionizing radiation in service, and the veteran
argues that subsequent heart problems and gastrointestinal
bleeding are the result of that exposure.
In this case however, there is no competent medical evidence
of record linking a heart disorder or internal bleeding to a
disease or injury of service origin. In other words, the
veteran's claim is predicated on his own opinion.
As it is the province of trained health care providers to
enter conclusions which require medical opinions as to
causation, see Grivois, the veteran's lay opinion is an
insufficient basis upon which to find this claim well
grounded. See Espiritu. Accordingly, as a well grounded
claim must be supported by competent medical evidence, not
merely allegations, see Tirpak, the veteran's claims for
service connection for a heart disorder and internal bleeding
must be denied as not well grounded.
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO. The Board therefore considered whether
the veteran has been given adequate notice to respond, and if
not whether he has been prejudiced thereby. See Bernard v.
Brown, 4 Vet.App. 384, 394 (1993).
In light of the veteran’s failure to meet his initial burden
in the adjudication process, the Board concludes that he has
not been prejudiced by the decision to deny his appeal. In
such a situation, the Board is not denying service connection
on the merits, but rather is finding that the veteran has
failed to meet his obligation of presenting a claim that is
plausible, or capable of substantiation, at this time.
If the veteran or his representative can secure competent
medical evidence that he has a heart disorder or internal
bleeding which is linked to service, to include exposure to
ionizing radiation, such evidence may be used in the filing
of another claim.
In reaching its decision, the Board notes that the Court has
held that there was some duty to assist the veteran in the
completion of his application for benefits under 38 U.S.C.A.
§ 5103(a) (West 1991 and Supp. 1997), depending on the
particular facts in each case. Robinette v. Brown, 8
Vet.App. 69 (1995); Beausoleil v. Brown, 8 Vet.App. 459
(1996); as modified by Epps v. Brown, 9 Vet.App. 341, 344
(1996), wherein the Court found there was a duty to further
assist in the development of the evidence only when the
veteran has reported the existence of evidence which could
serve to render a claim well grounded. The facts and
circumstances of this case are such that no further action is
warranted.
ORDER
The veteran not having submitted well grounded claims for
entitlement to service connection for a heart disorder and
internal bleeding, the claims are denied.
RONALD R. BOSCH
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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